“Delawyering” Inquests - Do as I say, not as I do

What does the Government’s 'Final Report: Review of Legal Aid for Inquests' mean for Advocates?

This report was published in February 2019 (see the report here). The section entitled ‘Making sure inquests remaininquisitorial’ at paragraphs 184 – 202 is particularly worth reading.

The estimated cost of providing representation for families at inquests where the state is represented (a recommendation under review) is a further £30-£70 million. The Government has decided not to provide that money. Therefore, the inequality of arms between families and state actors continues. (This is an issue on which many at Inquest Blog Towers have views - see here for our earlier post).

No biggie though because, with an alchemical ability that relegates Dr. John Dee’s wizardry[1] to key stage 1, the Government has eliminated misconceived family negativity and accentuated how inequality is not only positive for everyone but also good for the system!

At the same time though, the report recognises that things have to change. To make up for the times when families are the only unrepresented IP in the room:

There will be guidance literature for families that helps them understand when legal aid is available. The “wider public interest” test that legal aid agency caseworkers apply when considering an application for Exceptional Case Funding will be comprehensively described in the new guidance.

A shortened and simplified Guide to Coroner Services for families will be published this spring. New leaflets deaths in prison or a mental hospital are under consideration. There will be a leaflet covering the post-mortem and viewing and return of the body.

There will be more training for coroners and their officers.

There will be a “protocol of key principles” which will “assist with behaviour” of lawyers. Public bodies and their legal representatives will be encouraged to sign up to this.

One of the principles in the draft protocol is that:

“state bodies will consider making an apology where something has gone wrong. Whilst an apology may not of itself give a bereaved family all they need – the inquest will look in depth at the circumstances of the death – an early apology can be very powerful and can be welcomed by the family, demonstrating an acceptance of error, a lack of defensiveness and willingness to take the family’s concerns seriously.”

If the Government really intends this new protocol to bite, a red pen will need to go through the word “consider”. [2]

Making sure inquests remain inquisitorial

All of us appearing in Coroners’ courts will undergo re-education in the use of “an inquisitorial advocacy style”. That is because of the feedback obtained during the Report’s review process:

“When people raise concerns about inquests becoming more adversarial they mean that the approach adopted by lawyers representing those concerned with the death (known as ‘interested persons’) is more like that of the prosecution and defence in a criminal trial, which might be characterised as point-scoring - rather than assisting the coroner to get to the truth - and that this is having an adverse impact on bereaved families.”

Frustratingly, the inquisitorial style isn’t sketched out (although the use of appropriate language when dealing with vulnerable people is mentioned). It can’t mean a style that is polite, appropriate and unoppressive because an advocacy style that fails to conform to that description is already unacceptable within an adversarial system.

Equally clearly, it can’t involve a prohibition on closed or leading questions: there are no parties at an inquest and it is the coroner, not the IPs, who call the witnesses. [3]

Cross Examination In Inquests

Whilst it’s all ‘questioning’ in an inquest (not examination and cross-examination) some inquests do require the coroner to determine which of two expert opinions to prefer and/or to resolve one or more central disputes of fact. And advocacy that, where necessary, enables the proper testing of disputed evidence is essential in a fair inquisitorial system.

To see why, let’s take a look at the unhappy case of the High Court of Parliament and Lord Lester where, it was argued, the lack of effective cross examination within an inquisitorial process was said to have resulted in a breach of the rules of natural justice.

The High Court of Parliament and Lord Lester

A woman complained that almost 12 years before, Lord Lester had sexually harassed her and said that if she didn’t have sex with him, she’d never get a peerage.

The complaint was investigated by the House of Lords’ Independent Commissioner for Standards who found that Lord Lester’s conduct breached that part of the code of conduct that required him to act on his personal honour. Lord Lester’s appeal was dismissed by the Committee for Privileges and Standards. In November 2018, there was a debate to decide whether the House should agree the report’s finding and the proposed sanction (expulsion originally, reduced to suspension on appeal). Lord Pannick proposed an amendment to the motion that the report be not agreed because the Commissioner did not conduct her investigation in a way that conformed with natural justice and fairness.

The guide to the code of conduct stated that:

The Commissioner must act in accordance with “natural justice and fairness”

“proceedings are not adversarial, but inquisitorial in character”;

complainants have no right to be called as a witness “nor do members accused of misconduct have any entitlement to cross-examine complainants”.

The standard of proof was “at least” the balance of probabilities

Lord Pannick’s chief concern was that cross examination had not been permitted and that its absence meant that “fairness could not be achieved”.

Lord Thomas of Gresford agreed. He added his concern that the Commissioner acted as investigator and judge. The Commissioner collected the evidence, interviewed witnesses, some by phone, did not interview some witnesses suggested by Lord Lester and made a judgment on the facts.

Lord Hope of Craighead disagreed. He explained that in addition to an impartial investigator, there were two rules of natural justice: fair notice of the case being made against one and a fair opportunity for the accused to answer the complaint. He said that Lord Lester denied the allegations in every particular: there was no scope for misunderstanding or misinterpretation. Either the complainant or the accused was not telling the truth. The procedure adopted by the Commissioner was fair.

Lord Woolf agreed with Lord Pannick. He said that “the word inquisitorial does not mean that you cannot have cross-examination”. And because the accuser was not allowed to confront the complainant, the Commissioner had not had the opportunity to determine where the truth lay.

Baroness Butler-Sloss also agreed with Lord Pannick – the credibility of the two main witnesses had not been properly tested. The more serious the allegation, the more cogent the evidence has to be. This is not a sliding scale “but what really matters is whether there is sufficient evidence to meet the seriousness of the allegations.”

Lord Mackay of Clashfern did not agree with Lord Pannick. The inquisitorial system did not require cross examination and “it is left to the commissioner to assess the credibility of the people involved by conversing with them in detail, as she has done”.

At the end of the debate, Lord Falconer asked Lord Pannick whether he would be content with the inquisitor asking the questions. He answered thus:

She did not conduct a cross-examination, and it is very difficult for the person making the decision to enter into the arena to do so. The experience of all distinguished inquiry chairmen, of whom there are many in the House—particularly the noble and learned Lord, Lord Woolf—is that when they are making a judgment in an inquisitorial inquiry on a question of fact which depends on credibility, they either allow the parties to cross-examine or they appoint counsel to the inquiry to conduct that process, which would also be entirely acceptable.”

Lord Pannick’s amendment to the motion was agreed by 101 to 78.

Alchemy

Returning to the Review of Legal Aid for Inquests: Families told the Government that “it can seem as if the Government has unlimited lawyers at its disposal and that it takes advantage of this”.

Families made the Government aware of the perception that “the focus of public bodies’ can be on minimising or denying what went wrong and handling reputational damage, rather than trying to get to the bottom of what happened.”

In response, the Government considered “delawyering” inquests.

By this it meant reducing the number of lawyers appearing for state actors, not dispensing with inquest lawyers altogether. But after due consideration, the Government “concluded that there is little that we can do to reduce the number of lawyers who represent public bodies at inquests”.

Boiled in the crucible were the base metals of familial concern about unfair advantage and state denial and governmental powerlessness to reduce representation for the state. From out of that crucible came this fool’s gold:

Families not having lawyers when all the public bodies do could be a really good thing because:

“a significant expansion of legal aid could have the unintended consequence of undermining the inquisitorial nature of the inquest system.”

Families having lawyers when all the public bodies do could be a really bad thing because:

“It could also reinforce the commonly held misconception that an inquest’s role is to apportion blame, as opposed to finding fact and learning lessons.”

The belief that really and truly it’s much better all-round if everybody except the bereaved have lawyers, because advocates representing families (unlike advocates representing public bodies [4]) lack the ability to understand what an inquest is for and to ask questions properly, surely requires not so much Dr. Dee’s Magical Mirror as Alice’s Looking-Glass.

[1]https://en.wikipedia.org/wiki/John_Dee Dr. Dee spent 30 years of his life trying to commune with angels in order to bring about pre-apocalyptic unity of mankind. He may well have empathised with the frustration of families seeking ‘exceptional funding’ to allow them to understand and participate in complicated court hearings where they are supposed to be at the heart of the process.

[2] The Bradford case (here) demonstrated that the duty of candour has some teeth.

[3] The Report says that the Chief Coroner is working with the BSB and SRA on this and the MoJ is planning a conference for lawyers this summer to encourage support for the changes and the use of said style. So there is not long to wait to find out what it means.

[4] who of course on a different day in another court may well be the same advocate.